ObamaCare’s Contract Problem

March 27, 2012

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Note: This article is also posted at PPACAction.com

At this moment, the Supreme Court is hearing oral arguments about the constitutionality of the key provision of the federal health care law: the individual mandate to purchase health insurance. The arguments are expected to focus on whether requiring individuals to maintain health insurance exceeds the authority granted to Congress under the Constitution’s Commerce Clause. On Friday, however, George Will raised another potential problem with the mandate, namely that it could wreak havoc on insurance contracts. As Will notes:

Throughout the life of this nation it has been understood that for a contract to be valid, the parties to it must mutually assent to its terms – without duress . . . To be meaningful, consent must be informed and must not be coerced. Under Obamacare, the government will compel individuals to enter into contractual relations with insurance companies under threat of penalty.

Will’s column draws on an amicus brief filed by the Institute for Justice. It will be interesting to see whether the issue comes up in today’s oral argument.